[살인피고사건][고집1975형,214]
The case reversing the judgment of the appellate court that rendered a aggravation of repeated crime without explaining the fact that it was subject to repeated crime;
It is an illegal act that affected the conclusion of the judgment to apply Article 35 of the Criminal Code to the criminal defendant who did not explain about which criminal facts have been committed, and to apply Article 35 of the Criminal Code to aggravation of repeated crime.
Article 35 of the Criminal Act, Article 323 of the Criminal Procedure Act
Supreme Court Decision 66Do1430 delivered on December 6, 1966 (Kakadd 3670; Supreme Court Decision 14No-350 delivered on December 6, 196; Decision No. 35(10)1246 of the Criminal Act)
Defendant
Defendant
Government's branch court of Seoul and Criminal District Court (74Gohap113) in the first instance court
We reverse the original judgment.
A defendant shall be punished by imprisonment for three years.
One hundred and twenty days of detention days before the sentence of the original judgment shall be included in the above sentence.
The first point of the grounds for appeal of the defendant was that the defendant had no intention to kill the victim, but the court below found the defendant guilty. The judgment of the court below was erroneous by misunderstanding the facts affecting the conclusion of the judgment, and the second point of the grounds for appeal of the counsel and the second point of the grounds for appeal are improper because the judgment of the court below against the defendant is too unreasonable.
Therefore, the first point of appeal is examined, and in light of the records of this case, the evidence duly adopted by the court below after examining the evidence, and the facts charged by the defendant can be fully recognized and the records of this case are examined, and there is no error of law as pointed out otherwise in the process of finding facts by the court below. Thus, the grounds of appeal as to mistake of facts cannot be accepted.
However, we examine the original judgment ex officio, and the original judgment applied Article 35 (2) of the Criminal Act to the defendant, and applied Article 35 of the Criminal Act to the defendant, but there was no explanation on the fact that the defendant had a criminal record prior to the original criminal act at the time of the original judgment, and therefore, the original judgment does not have any influence on the judgment, and therefore, the original judgment is erroneous by adding a repeated crime to a repeated crime without the authorization. Since this cannot be affected by the judgment, it is impossible to avoid reversal of the original judgment in this respect without examining the defendant's assertion of unfair sentencing. Thus, the original judgment is reversed in accordance with Article 364 (2) and (6)
The summary of the criminal facts of the defendant who is admitted as a member of the party and the summary of the evidence is as stated in the corresponding case in the original judgment, and the criminal facts of the defendant are cited as it is in accordance with Article 369 of the Criminal Procedure Act, since "the defendant was sentenced to two years of imprisonment with prison labor at the ordinary military court of the Army on April 29, 1971, and was released on March 24, 1973 at the Ansan prison."
The so-called "competence" in the law corresponds to Article 250 (1) of the Criminal Act. Since the defendant has been prior to his judgment, he is subject to a limited term of imprisonment, he is subject to repeated crimes within the scope of the proviso of Article 42 of the same Act pursuant to Article 35 of the same Act. Since the defendant is the primary offender and the defendant has a reason to take into account the circumstances such as the motive for the crime of this case, he is subject to repeated crimes. Thus, the defendant shall be punished by imprisonment for three years within the scope of the mitigated term of punishment pursuant to Articles 53 and 55 (1) 3 of the same Act. In accordance with Article 57 of the same Act, 120 days out of the number of detention days prior to the sentence of the
It is so decided as per Disposition for the above reasons.
Judges Limited Jin-jin (Presiding Judge)